EWCA refusal of wife's divorce petition brings new calls for 'no-fault' reform

Monday, 27 March 2017
In Owens v Owens (2017 EWCA Civ 182) the England and Wales Court of Appeal (EWCA) has refused to grant a divorce to a woman whose cited grounds did not, it decided, meet the standard of 'irretrievable breakdown' as defined in the Matrimonial Causes Act 1973.

Tini Owens' divorce petition stated that her husband did not give enough time to her and his family; that he did not offer love and affection; that the couple had frequent 'distressing and hurtful' arguments; and that he was 'unpleasant and disparaging' about her.

Hugh John Owens, her husband of 35 years, opposed the petition. The Central Family Court agreed with him that the allegations were 'at best flimsy'. Judge Tolson QC stated: 'As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage.'

On appeal, Mrs Owens argued that the judge had not properly considered the cumulative effect of her husband's behaviour, and that her own personality should have been taken into account.

The EWCA rejected Mrs Owens' arguments. It upheld the first instance refusal to grant a divorce, because she had 'failed to prove, within the meaning of section 1(2)(b) of the Matrimonial Causes Act 1973, that her husband "has behaved in such a way that [she] cannot reasonably be expected to live with [him]."'

In some obiter remarks, Sir James Munby (President of the Court of Appeal's Family Division) noted that the court was obliged to apply the law as it stood, though the decision was likely to be controversial.

'It is well known that many hold the view that this is not what the law should be, that times have moved on since 1969, and that the law is badly out-of-date, indeed antediluvian', he said. His colleague Lady Justice Hallett added: 'We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them. It is for Parliament to decide whether to amend section 1 [of MCA 1973] and to introduce “no fault” divorce on demand; it is not for the judges to usurp their function.'

'This judgment is a case study for why no fault divorce is required', commented Brett Frankle, a Partner in Withers' Family Law Team. 'Any judgment in which a Judge reaches a conclusion "with no enthusiasm whatsoever" is generally a sign that the law is not fair.'

Mrs Owens intends to appeal to the Supreme Court.

Meanwhile, a recent research project by an Exeter University academic, Liz Trinder, has found that the majority of divorces are based on fault, where one spouse is blamed for the marriage breakdown. However, the petitions are not necessarily accurate, being often just a means for one or other party to use the faster three-month track to divorce instead of having to wait two years. Moreover, claims of fault can create or exacerbate conflict and affect negotiations about children or finances, contrary to the law's intention to get parties to work together.

'In reality, there is already divorce by consent or on-demand, but masked by an often painful and sometimes destructive legal ritual', comments Trinder. 'Reform of divorce law is long overdue.'


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